Since the enactment of Superfund in 1980, critics of the statute's liability regime have been relentless in their attempts to convince courts that Superfund liability is so unfair as to be unconstitutional. While their persistence has produced only minor changes in the liability regime, their cause may have been given a lift by the U.S. Supreme Court's 1998 decision in Eastern Enterprises v. Apfel.
Editors' Summary: During congressional debate on CERCLA reauthorization, attention has focused on the role of states in executing the Act. Some observers of these debates have questioned the constitutionality of delegating EPA cleanup and enforcement authorities to states. In contrast, this Article argues that such delegation is permissible under the U.S. Constitution and constitutional jurisprudence. The author asserts that under the Appointments Clause, the delegation of CERCLA authorities to states would not usurp Executive Branch functions.
The federal courts are in agreement that an action by a potentially responsible party (PRP) against another PRP to recover privately incurred response costs is a claim for contribution in which the plaintiff is limited to the relief that is available under §113(f)(1) of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA).
Throughout recorded time, many have attempted to rewrite history to soften the harsh realities of the "good old days." Without question, hindsight remains 20/20 in reflecting upon how this country's modern, industrialized enterprises have adversely impacted the environment, including natural resources. The dilemma now facing businesses relates to natural resource damage liabilities resulting from past industrial progress and prosperity. Through the years, these businesses have paid for past wrongs through the remediation of contaminated media. Clearly, U.S.
On July 1, 2001, Colorado Senate Bill 01-145 (SB 145) took effect. The statute creates an "environmental covenant" as a mechanism for enforcing use restrictions imposed in connection with the remediation of contaminated sites. The environmental covenants contain use restrictions that were relied upon in the remedial decision. Such restrictions are commonly known as "institutional controls." Colorado enacted this law because it was not clear whether existing mechanisms (such as common-law covenants and easements) would be legally enforceable in relevant circumstances.
The Comprehensive Emergency Response, Compensation, and Liability Act (CERCLA) authorizes designated trustees to recover damages for injury to natural resources caused by a hazardous substance release. Under its delegated authority, the U.S. Department of the Interior (DOI) has promulgated regulations governing the assessment of natural resource damages (NRDs). The regulatory scheme, however, has posed tremendous difficulties for all interested parties.
Debate over reforms to the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) consumed substantial energy during the 1997 session of Congress, and those deliberations will continue in 1998 with the hope of finally producing consensus about how the law can be improved. While interested parties may have different, often opposing views of how CERCLA should be reformed, some of their proposals may not represent progress, particularly the procedural changes related to restoring injured natural resources and expediting recoveries of natural resource damages (NRD).
The focus of much dialogue and debate in the public eye over climate change and greenhouse gas emissions (GHGs) tends to focus on industrial emissions of pollution for manufacturing or the production of electricity. Emissions from transportation sources (like trains, planes, and automobiles) and from the heating, cooling, and lighting of buildings themselves are less readily visible, yet each constitutes roughly a third of America's total greenhouse gas emissions.
Editor's Summary: The exact contours of wetlands jurisdiction has been in dispute ever since the U.S. Supreme Court's decision in Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers. Today, the Court has been given the chance to clarify this area of law as it faces two cases dealing with wetlands jurisdiction. In Rapanos v. United States, the Court must decide whether CWA jurisdiction extends to a series of wetlands that do not abut a navigable-in-fact water. And in Carabell v. U.S.
Editors' Summary: Environmental professionals continue to consider the implications of the 2006 U.S. Supreme Court landmark decision regarding CWA jurisdiction, Rapanos v. United States. In this Article, Matthew A. Axtell uses Justice William O. Douglas'travel description of Alaska's Last Lake as a hypothetical to test the potential impact of the 2001 SWANCC decision as well as Rapanos on the federal government's CWA authority in Alaska. He begins by analyzing the CWA regulatory regime that applied for many years to Alaskan tundra wetlands before SWANCC and Rapanos.